Here’s the opinion of the UN working group on arbitrary detention, which has concluded that Britain and Sweden have arbitrarily detained Julian Assange. It calls on both countries to release him, and pay him compensation.
I wondered in my earlier post how the working group might classify the “detention”—in fact, it puts it in what it calls “category III”, where detention is arbitrary because of a grave non-observance of the right to a fair trial. I thought that was obviously the least likely possibility (Sweden being unable to put Julian Assange on trial at all, as things stand) but the working group has concluded otherwise.
The reasoning of the working group is thin, to say the least. It begins by noting that Assange was segregated from other prisoners for the ten days he was remanded in custody in Wandsworth prison—and simply goes on to say (para. 86)—
arbitrariness is inherent in this form of deprivation of liberty, if the individual is left outside the cloak of legal protection, including the access to legal assistance …
without considering whether the decision to segregate him was justified, and without considering the fact that he had lawyers and applied for bail, so was not “left outside the cloak of legal protection”. On this approach, every segregated prisoner in the UK is arbitrarily detained.
Assange’s detention, the working group goes on, continued for 550 days in the form of what it calls “house arrest” (para. 87):
During this prolonged period of house arrest, Mr. Assange had been subjected to various forms of harsh restrictions, including monitoring using an electric tag, an obligation to report to the police every day and a bar on being outside of his place of residence at night. In this regard, the Working Group has no choice but to query what has prohibited the unfolding of judicial management of any kind in a reasonable manner from occurring for such extended period of time.
This is of course the period in which Julian Assange was released on conditional bail and living at Ellingham Hall. Its quite true he had a curfew, and had to be there during the night hours. It’s true he was tagged, and had to report daily to the police. But otherwise as I understand it he was free to come and go. And these admittedly strict bail conditions are understandable given that Assange had already flown out of Sweden, where he was wanted. The working group does not consider why those bail conditions were imposed, the fact that Assange could have applied for a variation of bail, or that his move to the Ecuadorian embassy can be said to justify, after the fact, the judge’s imposition of bail conditions.
Breathtakingly, the working group fails to mention the fact that Assange entered the Ecuadorian embassy after losing his Supreme Court battle against extradition. And as far as his prolonged residence there is concerned, the working group says (para. 90)
Mr. Assange’s stay at the Embassy of the Republic of Ecuador in London to this date should be considered as a prolongation of the already continued deprivation of liberty …
but never actually addresses the question whether this really is detention, and even if it is whether Britain and Sweden are the “detainers”. Indeed in the next paragraph (91) it says revealingly
What matters in the expression ‘arbitrary detention’ is essentially the word “arbitrary”
which perhaps explains the lack of analysis of whether there is now any “detention”. To be fair, the working group says (para. 91)
Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty
but of course neither Britain nor Sweden has “placed” Julian Assange in the Ecuadorian embassy.
Perhaps paragraph 97 of the opinion gives us most insight into the working group’s approach. It criticises
a substantial failure to exercise due diligence on the part of the concerned States with regard to the performance of the criminal administration
complains that Assange
is still left even before the stage of preliminary investigation with no predictability as to whether and when a formal process of any judicial dealing would commence
and offers the insight that
From a time perspective, it is worse than if he had appeared in Sweden for questioning and possible legal proceeding when first summoned to do so
it defeats the purpose and efficiency of justice and the interest of the concerned victims to put this matter of investigation to a state of indefinite procrastination.
Yet at no point does it consider whether Julian Assange might be even partly responsible for any of the delay, uncertainty or “indefinite procrastination”. This sums up an awfully reasoned opinion that in effect accepts all Julian Assange’s arguments uncritically.
In contrast, the dissenting opinion of Vladimir Tochilovsky is to the point, and hard to argue with. As far as the embassy stay is concerned, he says (para. 3)
In fact, Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest. Indeed, fugitives are often self-confined within the places where they evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the State that does not recognise the arrest warrant. However, these territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group.
As for the period on conditional bail, he says
In regard to the house arrest of Mr. Assange in 2011-2012, it was previously emphasised by the Working Group that where the person is allowed to leave the residence (as in Mr. Assange’s case), it is “a form of restriction of liberty rather than deprivation of liberty, measure which would then lie outside the Group’s competence” … Mr. Assange was allowed to leave the mansion where he was supposed to reside while litigating against extradition in the courts of the United Kingdom. As soon as his last application was dismissed by the Supreme Court in June 2012, Mr. Assange fled the bail.
Philip Hammond is right: this working group opinion is ridiculous.